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Quick Hits
- When reviewing a mass layoff notice, the focus must generally be on the purpose of the notification procedure.
- Stating a number of employees to be laid off that is slightly too high in the mass layoff notice does not automatically render the notice invalid.
The Case
The employee worked as a machine setup technician and operator for a key manufacturer and machine builder. The employer became insolvent in November 2024. The insolvency administrator decided to shut down operations and terminate the employment relationships of all employees. In February 2025, a reconciliation of interests was concluded with the relevant works council. Subsequently, a mass layoff notice was filed with the Employment Agency (Agentur für Arbeit). After the Employment Agency received the notice, the employer terminated the employee’s employment relationship, among others. The notice of mass layoffs stated that thirty-four layoffs were to be carried out. In fact, however, thirty-one or thirty-two terminations were issued.
The employee challenged the termination, arguing that the termination was invalid because, during the proceedings under Section 17 KSchG, contradictory or incorrect information regarding the number of employees to be laid off had been provided to both the works council and the Employment Agency.
The Hagen Labor Court upheld the claim. The Hamm State Labor Court, however, dismissed it.
The BAG’s Decision
In its ruling (Ref. No. 6 AZR 7/26, decision of June 25, 2026), the BAG found that the employee’s appeal on points of law was unsuccessful. The termination remained valid.
The BAG initially based its decision on the purpose of the mass layoff notification. This notification was intended to enable the competent Employment Agency to find solutions to the anticipated problems associated with the planned layoffs.
If errors did occur in the submission of the mass layoff notice that did not, however, conflict with the purpose of the notification procedure and did not significantly impede the search for solutions, the mass layoff notice nevertheless satisfied the requirements of Section 17 KSchG and the EU Collective Redundancies Directive (Massenentlassungsrichtlinie (MERL)).
The slightly inflated number of employees to be laid off stated in the present case—thirty-four instead of thirty-one or thirty-two—did not affect the Employment Agency in its task of assessing the consequences of the layoffs, such as which labor market policy measures should be taken. The notice still allowed the Employment Agency to carry out its statutory role.
Thus, according to the BAG, the mass layoff notification remained proper and therefore effective despite the objectively incorrect information.
Practical Significance
The decision is notable, even though the corresponding press release from the BAG (the full text of the decision is not yet available) leaves open the question of when comparable errors in the notification procedure are no longer considered “minor.”
However, the decision is highly relevant in practice, as the “dismissals” to be reported in the notification procedure also include employer-initiated separation agreements. However, the conclusion of such agreements depends on the parties’ willingness to enter into them, so it is not uncommon for termination agreements that were initially “planned” to ultimately not be concluded—or at least not within the thirty-day period specified in the mass layoff notice. The BAG’s focus on the purpose and intent of the notification procedure is therefore pragmatic and correct in this context. Unfortunately, such pragmatism is not necessarily common in the case law of Germany’s highest labor court regarding mass layoff procedures.
Tatjana Serbina is counsel in the Berlin office of Ogletree Deakins.
Maximilian Gössling, a trainee lawyer in the Berlin office of Ogletree Deakins, contributed to this article.
Ogletree Deakins’ Berlin and Munich offices will continue to monitor developments and will post updates on the Cross-Border, Germany, and Reductions in Force blogs as additional information becomes available.
